LetOhioVote.org was the organization that was formed, at one time, to try to subject Governor Strickland’s video lottery terminals (VLTs) at horseracing track proposals to voter repeal by referendum. It is widely believed that it was funded by the backers of the constitutional amendment that mandated casino gambling in Ohio, who feared VLTs would cut into their business.
We don’t know because so far the only donor that LetOhioVote has disclosed is a Virginia-based company called New Models. Suspecting that New Models was being used as a front to hide the true donors. Secretary of State Brunner subpoenaed LetOhioVote.org to demand records and testimony. LetOhioVote.org’s legal challenges to those subpoenas have been, so far, totally unsuccessful. Earlier this week, Brunner referred the matter to the Ohio Attorney General’s office seeking prosecution against several members of the organization for not complying with her office’s subpoena.
The Cincinnati Enquirer has the group’s reaction:
Brunner claims the four failed to cooperate or provide documents. But Langdon argues state law allowed them to appear for depositions and assert their constitutional right not to incriminate themselves.
First, there is considerable debate when the act of producing a document triggers self-incrimination. Not all documentation production, inherently, is subject to the assertion of the Fifth Amendment’s self-incrimination For example, a business entity has no Fifth Amendment right at all. So, there’s a legitimate debate for Brunner to say that the organization’s documents aren’t subject to the Fifth Amendment privilege, and therefore, have to produced.
So, the only way that these individuals who served in the organization can legitimately assert the privilege against turning over their organization documents is for them to say that such a production would incriminate themselves individually.
And in order to assert the privilege, you have to have a reasonable basis to believe that if you were compelled to testify under oath, you would provide evidence that could be used in a criminal prosecution against you. If there is no reasonable or legitimate reason to suspect that such testimony would lead to the revelation of evidence of the witness’ own criminal acts, the privilege cannot be asserted.
So the assertion of the privilege is almost always a double-edge sword. The person asserting the privilege avoids having to choose between committing perjury or providing evidence of their criminal wrongdoing, but there is a societally belief that the assertion of the privilege is, in fact, a tacit acknowledgement by the deponent that he has reason to believe what he did may constitute as a criminal act.
This is quite a turn of events from the LetOhioVote.org’s prior position that there was absolutely nothing wrong with how they reported all their donations came from New Models.